Citation Nr: 1716090
Decision Date: 05/11/17 Archive Date: 05/22/17
DOCKET NO. 11-28 755 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent for a low back disability, to include any neurological manifestations, prior to October 22, 2014, and a rating in excess of 40 percent thereafter.
2. Entitlement to an initial separate compensable rating for radiculopathy of the right lower extremity prior to October 22, 2014, and a rating in excess of 20 percent thereafter.
3. Entitlement to an initial separate compensable rating for radiculopathy of the left lower extremity.
4. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability, to include any neurological manifestations, prior to October 22, 2014, and a rating in excess of 30 percent thereafter.
5. Entitlement to an initial separate compensable rating for radiculopathy of the right upper extremity prior to October 22, 2014, and a rating in excess of 20 percent thereafter.
6. Entitlement to an initial separate compensable rating for radiculopathy of the left upper extremity prior to October 22, 2014, and a rating in excess of 20 percent thereafter.
7. Entitlement to initial compensable ratings for bilateral plantar fasciitis prior to October 22, 2014, and a rating in excess of 50 percent for bilateral plantar fasciitis with left foot pes planus and right foot pes cavus thereafter.
8. Entitlement to an initial compensable rating for hypertension.
ATTORNEY FOR THE BOARD
J. T. Brant, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Navy from September 1985 to September 2009.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which, in part, granted service connection, effective October 1, 2009, for the following conditions: a low back disability, evaluated as 20 percent disabling; a neck disability, evaluated as 10 percent disabling; and right and left foot plantar fasciitis and hypertension, each evaluated as noncompensable.
During the course of the appeal, in a March 2015 rating decision, the RO increased the Veteran's low back disability to 40 percent disabling and his neck disability to 30 percent disabling, effective October 22, 2014. The RO granted service connection for bilateral upper extremity radiculopathy associated with the service-connected neck disability and right lower extremity radiculopathy associated with the Veteran's service-connected low back disability, and evaluated each as 20 percent disabling, effective October 22, 2014. The RO rated the Veteran's bilateral foot disability (initially rated separately) as a single disability and increased the rating to 50 percent disabling, effective October 22, 2014. As increased awards during the pendency of an appeal do not represent total grants of benefits, the Veteran's claims for higher disability ratings remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board further notes that the Veteran has continued to express disagreement with the increased ratings assigned in the March 2015 RO decision. See Veteran's letter and VA notice of disagreement form received July 21, 2015. The matters have been recharacterized as indicated on the title page of this decision to better reflect the Veteran's contentions.
The matters were previously remanded by the Board in October 2014 and April 2017 for additional development. The matters have since returned to the Board. In November 2016, the Veteran removed the DAV as his representative and indicated his intent to represent himself.
The Board previously referred a service connection claim for fibromyalgia. Although a VA memo dated February 12, 2015, appears to recognize the claim, it is unclear whether any action has been taken on the claim. As such, the matter is again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b)(2016).
FINDINGS OF FACT
1. Resolving any doubt in favor of the Veteran, for the entire period on appeal, considering his complaints of pain on motion, the Veteran's low back disability has been manifested by no more than forward flexion limited to 30 degrees. There is no evidence of favorable or unfavorable ankylosis, or evidence of incapacitating episodes of Intervertebral Disc Disease having a total duration of 6 weeks during a 12-month period.
2. For the period prior to October 22, 2014, the medical evidence demonstrated no lumbar radiculopathy of the right lower extremity which is at least mild in nature.
3. For the period beginning October 22, 2014, the medical evidence demonstrated moderate lumbar radiculopathy of the right lower extremity; moderately severe incomplete paralysis is not shown.
4. Throughout the appeal period, there has been no probative evidence of radiculopathy of the left lower extremity which is at least mild in nature.
5. For the period prior to October 22, 2014, the Veteran's cervical spine disability was not manifested by limitation of forward flexion to 30 degrees or less; combined range of motion of the cervical spine to 170 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes.
6. For the period beginning October 22, 2014, there has been no evidence of unfavorable ankylosis of the entire cervical spine.
7. For the period prior to March 24, 2011, there was no probative evidence of radiculopathy of the right upper extremity which was at least mild in nature.
8. For the period beginning March 24, 2011, the Veteran's radiculopathy of the right upper extremity has been shown to be manifested by no more than mild, incomplete paralysis.
9. For the period prior to October 22, 2014, there was no probative evidence of radiculopathy of the left upper extremity which was at least mild in nature.
10. For the period beginning October 22, 2014, the Veteran's radiculopathy of the left upper extremity has been shown to be manifested by no more than mild, incomplete paralysis.
11. For the period prior to October 22, 2014, the Veteran's left foot plantar fasciitis was manifested by complaints of pain after prolonged walking and running, and is classified by no more than a moderate impairment of the left foot.
12. For the period prior to October 22, 2014, the Veteran's right foot plantar fasciitis was manifested by complaints of pain after prolonged walking and running, and is classified by no more than a moderate impairment of the right foot.
13. For the period beginning October 22, 2014, the Veteran is in receipt of the maximum rating allowed under Diagnostic Code 5276 for bilateral pes planus.
14. The Veteran's hypertension is not manifested by diastolic pressure that is predominately 100 or more; or systolic pressure predominately 160 or more; or a history of diastolic pressure predominately 100 or more and continuous medication for control.
CONCLUSIONS OF LAW
1. For the entire period on appeal, the criteria for an initial increased rating of 40 percent, but no higher, for the Veteran's low back disability have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2016).
2. For the period prior to October 22, 2014, the criteria for an initial compensable (separate) rating for the Veteran's service-connected lumbar radiculopathy of the right lower extremity were not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016).
3. For the period beginning October 22, 2014, the criteria for a rating in excess of 20 percent for the Veteran's lumbar radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016).
4. The criteria for a compensable (separate) rating for lumbar radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016).
5. For the period prior to October 22, 2014, the criteria for an initial rating in excess of 10 percent for cervical spondylosis, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5239 (2016).
6. For the period beginning October 22, 2014, the criteria for an initial rating in excess of 30 percent for intervertebral disc syndrome, with C5-C7 cervical degenerative disc disease and radiculopathy, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2016).
7. For the period prior to March 24, 2011, the criteria for an initial compensable (separate) rating, for radiculopathy of the right upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8511 (2016).
8. For the period beginning March 24, 2011, the criteria for an initial rating of 20 percent, but no higher, for radiculopathy of the right upper extremity, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8511 (2016).
9. For the period prior to October 22, 2014, the criteria for an initial compensable (separate) rating, for radiculopathy of the left upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8511 (2016).
10. For the period beginning October 22, 2014, the criteria for an initial rating in excess of 20 percent, for radiculopathy of the left upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8511 (2016).
11. For the period prior to October 22, 2014, the criteria for a 10 percent rating, but no higher, for left foot plantar fasciitis, were met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2016).
12. For the period prior to October 22, 2014, the criteria for a 10 percent rating, but no higher, for right foot plantar fasciitis, were met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2016).
13. For the period beginning October 22, 2014, the criteria for a rating in excess of 50 percent for bilateral plantar fasciitis with left foot pes planus and right foot pes cavus have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2016).
14. The criteria for an initial compensable evaluation for hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Stegall Concerns
As was alluded to in the Introduction, the Board remanded the Veteran's claims in October 2014 and April 2017 for additional procedural and evidentiary development.
In the October 2014 remand, the Board instructed the AOJ to obtain any outstanding additional Family and Medical Leave Act (FMLA) records and to schedule the Veteran for VA examinations to determine the current severity of his service-connected low back and cervical spine disabilities; hypertension; and plantar fasciitis of the left and right feet. In October 2014, the AOJ provided the Veteran with VA examinations for his service-connected low back and cervical spine disabilities; hypertension; and bilateral foot disabilities. With respect to these claims, the examination reports included all findings requested by the Board. In December 2014, the AOJ obtained the Veteran's FMLA records. The AOJ readjudicated the Veteran's claims in a March 2016 Supplemental Statement of the Case.
In the April 2017 remand, the Board instructed the AOJ to ask the Veteran to clarify whether he wanted a videoconference or Travel Board hearing, and to schedule the Veteran for a hearing pursuant to his clarification. That same month, the Veteran indicated that he did not want any type of in-person hearing.
Thus, the Board's prior remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim.
Duty to Notify
VA's duty to notify was satisfied by letter dated in July 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
Duty to Assist
VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records, all identified post-service treatment records, FMLA records, and lay statements have been associated with the record.
With respect to the claim for an initial increased rating for a low back disability, during the appeal period, the Veteran was afforded VA examinations in July 2009 and October 2014. For an adequate VA examination, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).
In this case, the Board finds the July 2009 and October 2014 examinations adequate for rating purposes. The examiners performed the required testing and made the relevant inquiries to determine how pain impacts the Veteran. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements.
Notably, when asked about functional impairment and loss at the examinations, the Veteran reported pain with all strenuous activity and an inability to lift over 10 pounds. In other statements, the Veteran has noted severe daily pain, where he was unable to perform his daily tasks. The Veteran has reported that his back disability caused him difficulty walking and standing for any great amount of time. While the examiners did not provide range of motion estimates in degrees regarding flare-ups, such is understandable as the October 2014 examiner explained that an estimate could not be provided as it would be pure speculation to state what degree of loss would be experienced following or during a flare-up. The Board finds this explanation adequate for why the examiner could not offer range of motion estimates. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent some indication of such by the examiners or report of such by the Veteran, neither of which is present in this case.
Even if it was found that the above examinations did not fully comply with the holdings in Correia, DeLuca, or Mitchell, the Board finds that further development would not be necessary as the deficiency would not be prejudicial to the Veteran. In addition to testing, the Veteran has been asked to describe functional loss and impairment in various situations and he has not identified that he has loss of motion to the degree required for a higher rating. Simply put, after taking into account the medical findings and the lay statements the evidence does not suggest that motion is limited to the requisite degree for a rating higher than the currently assigned 40 percent rating at any point.
Given the above, with respect to the service-connected low back disability, further examination or opinion is unnecessary.
With respect to the claim for an initial increased rating for a cervical spine disability, during the appeal period, the Veteran was afforded VA examinations in July 2009 and October 2014. For an adequate VA examination, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).
In this case, the Board finds the July 2009 and October 2014 examinations adequate for rating purposes. The examiners performed the required testing and made the relevant inquiries to determine how pain impacts the Veteran. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements.
Notably, when asked about functional impairment and loss at the examinations, the Veteran reported pain with all strenuous activity and an inability to lift over 10 pounds. In other statements, the Veteran has noted severe daily pain, where he was unable to perform his daily tasks. The Veteran has reported that his cervical spine disability caused him difficulty walking and standing for any great amount of time. While the examiners did not provide range of motion estimates in degrees regarding flare-ups, such is understandable as the October 2014 examiner explained that an estimate could not be provided as it would be pure speculation to state what degree of loss would be experienced following or during a flare-up. The Board finds this explanation adequate for why the examiner could not offer range of motion estimates. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent some indication of such by the examiners or report of such by the Veteran, neither of which is present in this case.
Even if it was found that the above examinations did not fully comply with the holdings in Correia, DeLuca, or Mitchell, the Board finds that further development would not be necessary as the deficiency would not be prejudicial to the Veteran. In addition to testing, the Veteran has been asked to describe functional loss and impairment in various situations and he has not identified that he has loss of motion to the degree required for a higher rating. Simply put, after taking into account the medical findings and the lay statements the evidence does not suggest that motion is limited to the requisite degree for a higher rating at any point.
Given the above, with respect to the service-connected cervical spine disability, further examination or opinion is unnecessary.
With respect to the claim for an initial increased rating for a bilateral foot disability, during the appeal period, the Veteran was afforded VA examinations in July 2009 and October 2014. The Board has carefully reviewed the VA examinations of record and finds that the examinations, along with the other evidence of record, are adequate for rating purposes.
With respect to the claim for an initial compensable rating for hypertension, during the appeal period, the Veteran was afforded VA examinations in July 2009, October 2014, and March 2016. The Board has carefully reviewed the VA examinations of record and finds that the examinations, taken as a whole along with the other evidence of record, are adequate for rating purposes.
As the Veteran has not identified any additional evidence pertinent to the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.
Rating Principles
A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45.
The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).
In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).
Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).
The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).
The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. at 354.
As the issues on appeal are for higher ratings, consideration of whether the criteria for the current ratings are met is not necessary and the analyses below will focus on whether the Veteran meets the criteria for the next higher rating for his disabilities.
Initial Increased Rating - Low Back Disability
By way of background, in a February 2010 rating decision, the RO granted entitlement to service connection for lumbar spine degenerative disc disease status post lumbar fusion, and assigned a 20 percent evaluation effective October 1, 2009, pursuant to Diagnostic Code 5242. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran disagreed with the initial rating assigned. In a March 2015 rating decision, the RO increased the evaluation for the Veteran's low back disability (now intervertebral disc syndrome, with degenerative arthritis and radiculopathy of the lumbar spine) to 40 percent effective October 22, 2014, the date of the VA examination showing worsening, pursuant to Diagnostic Code 5243. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. He is primarily asserting that his 40 percent rating should be effective the date of his claim, October 1, 2009.
Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating.
Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.
Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code.
When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243.
The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V.
Reviewing the relevant evidence of record, on VA examination in July 2009, the Veteran reported an unlimited ability to walk. He denied a history of falls. He reported the following symptoms: stiffness, fatigue, spasms, decreased motion, paresthesias, and numbness. He reported weakness of the leg. He denied bowel or bladder problems. He denied having erectile dysfunction. He described the pain as constant and severe. He reported that the pain traveled to his legs and feet, left greater than right. He indicated the pain was exacerbated by physical activity and stress, and relieved by rest, Morphine, and Zanaflex. He indicated that during flare-ups, he experienced functional impairment described as pain with all strenuous activities. He noted treatment with a lumbar sacral laminectomy in November 2007. He described the residuals as persistent pain. The Veteran indicated incapacitation over the year for one to three days. He reported the overall functional impairment as pain with all activity.
On physical examination, the Veteran's posture was normal and he walked with a normal gait. His walking was steady. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. The Veteran did not require any assistive device for ambulation. There were no signs of lowered endurance or impaired coordination. Examination of the thoracolumbar spine revealed no evidence of radiating pain on movement. Muscle spasm was absent. There was tenderness at the lumbosacral junction. Spinal contour was not preserved due to tenderness. There was guarding of movement. Spinal contour was not preserved due to guarding. The examination did not reveal any weakness. Muscle tone was normal. There was a negative straight leg raise on the right and left. Lasegue's sign was negative. There was no atrophy. There was no ankylosis of the thoracolumbar spine. Range of motion findings were as follows: forward flexion to 40 degrees, with pain at 30 degrees; extension to 30 degrees, with pain at 20 degrees; right and left lateral flexion to 30 degrees; and right and left rotation to 30 degrees. Repetitive range of motion was possible with no additional degree of limitation. The examiner indicated that the joint function of the spine was additionally limited by pain, fatigue, lack of endurance after repetitive use. The examiner indicated that pain had the major functional impact.
There were no sensory deficits from L1-L5 or S1. There was no lumbosacral motor weakness. Deep tendon reflexes were 2+. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. The examiner diagnosed degenerative disc disease with herniation and status post lumbar fusion with pseudoarthrosis and persistent pain. He noted that the subjective factors were persistent low back pain and the objective factors were well-healed scar, tenderness, and painful range of motion. The examiner indicated that the effect of the Veteran's condition on his usual occupation and daily activity was pain with all strenuous activity.
In August 2010, the Veteran applied for disabled parking. On the application, a physician indicated that he could not walk 200 feet without stopping to rest and that he was severely limited in his ability to walk due to an arthritic, neurological, or orthopedic condition.
In the Veteran's notice of disagreement dated in January 2011, the Veteran indicated that as a result of his L5-S1 fusion surgery, he suffered from agonizing chronic back pain for which he is prescribed Morphine, Vicodin (for break through pain), Valium (for back spasms), and Flexeril (for muscle pain).
In September 2013 FMLA application, the Veteran described the need for pain management for chronic pain, use of TENs unit, and physical therapy for his chronic neck and back pain. The Veteran estimated the frequency of his flare-ups as seven times per week lasting two to six hours per day per episode. He indicated that he needed care during these flare-ups.
In an October 2013 statement in lieu of a VA Form 646, the Veteran's representative indicated that the Veteran's service-connected back condition caused severe pain daily, where he was unable to perform his daily tasks. The representative indicated that the Veteran contended that the VA examining physician did not take his amount of pain into consideration. The representative indicated that the Veteran reported that his conditions caused him difficulties walking and standing for any great amount of time.
In a statement dated in January 2014, the Veteran indicated that his back continued to worsen, causing extreme daily pain.
On VA examination in October 2014, the examiner diagnosed degenerative arthritis of the spine, intervertebral disc syndrome, lumbar radiculopathy (2012), degenerative disc disease, and degenerative joint disease. The Veteran reported that he worked at Home Depot and had pain all day at work. He noted that he had been on FMLA since April 2013, with work that is intermittent with 480 hours a year so he can leave for pain or appointments. He reported treatment with a hot tub, physical therapy, back brace, and medications. He indicated that the pain radiated down to his hip to his right leg down the foot. He also reported sporadic radiation down the left leg with pins and needles to his toe. The Veteran reported constant, severe flare-ups lasting all day. For treatment, he noted stretching, lying down with pillows, and medications. He noted that his flare-ups were activity-dependent. He indicated that he could walk 1/4 mile and stand for 45 minutes. He indicated his pain level was currently 8/10, but would rise to 10/10.
Range of motion was as follows: forward flexion to 40 degrees with pain; extension to 30 degrees or greater with pain; right and left lateral flexion to 10 degrees with pain; and right and left lateral rotation to 10 degrees with pain. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test forward flexion was to 30 degrees; extension was to 20 degrees; right and left lateral flexion was to 10 degrees; and right and left lateral rotation was to 10 degrees. The Veteran had the following functional loss: less movement than normal, excess fatigability, pain on movement, interference with sitting, standing and/or weight-bearing, and lack of endurance. With respect to the Mitchell criteria, the examiner noted that there was no change in range of motion following repetitive motion. The examiner indicated that it would be pure speculation to state the degree of loss experienced following or during a flare-up. The Veteran had central pain along the lumbar region and muscle tightness resulting in an antalgic gait. He did not have muscle spasms. The Veteran had guarding of the spine resulting in abnormal gait.
Muscle strength was 5/5. There was no muscle atrophy. Deep tendon reflexes were 2+. Sensation of the right upper anterior thigh, right thigh/knee, right lower leg/ankle, and right foot/toes was decreased. The straight leg raise test was positive on the right and left. The Veteran had signs or symptoms due to radiculopathy. He had moderate constant pain of the right lower extremity, moderate paresthesias and/or dysesthesias of the right lower extremity, and moderate numbness of the right lower extremity. The nerve roots involved were the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). The examiner indicated that the radiculopathy of the right lower extremity was moderate. The examiner found that the Veteran did not have ankylosis of the spine. The examiner found that the Veteran had intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The Veteran did not use any assistive devices for locomotion. The examiner indicated that the Veteran's back condition impacted his ability to work in that he was unable to lift more than 10 pounds. The examiner noted that the Veteran had FMLA paperwork to excuse him from work for medical appointments and management. He noted that the Veteran had access to an electric cart at work.
Various VA treatment records showed complaints of low back pain. In January 2013, the Veteran had his medications increased for worsening back pain. In June 2014, the Veteran indicated that his pain was "status quo," but he was able to function and work at Home Depot. The Veteran consistently denied loss of bowel or bladder control.
Resolving any doubt in the Veteran's favor, the Board finds that a 40 percent rating is warranted for the entire period on appeal. The General Rating Formula does not provide for a rating higher than 40 percent unless there is unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. Ankylosis is defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case, the Veteran has not been diagnosed with ankylosis of any segment of his spine.
The medical records clearly demonstrate that while the motion of the Veteran's lumbar spine has been limited, some range of motion is present throughout the applicable period under appeal. As shown above, none of the examiners have found any spinal ankylosis. Thus, it cannot be concluded that the Veteran has ankylosis of the thoracolumbar or lumbar spine, and certainly not unfavorable ankylosis. There is no basis, therefore, for a higher evaluation inasmuch as there is no clinical evaluation of ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997).
The Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain, weakness, and stiffness. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran already receives the maximum disability rating available for limited motion in the lumbar spine absent ankylosis. In addition, none of the medical evidence suggests that the severity of his service-connected back disability is the functional equivalent of ankylosis. Notably, all of the examinations during this timeframe demonstrated that the Veteran had at least some range of motion in his lumbar spine, even with Deluca considerations, throughout the applicable period under appeal. See July 2009 and October 2014 VA examinations. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a rating higher than 40 percent based on functional loss. As such, the Veteran is not entitled to a higher rating under the General Rating Formula for limitation of spine movement. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.
As for a higher rating under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that the most recent examination in October 2014 revealed incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, which could warrant a 20 percent rating. There were no findings of intervertebral disc syndrome prior to this examination. As such, a disability rating higher than the currently assigned 40 percent under the rating criteria for intervertebral disc syndrome would not be warranted. Id.
As to whether additional compensation for neurological impairment is warranted at any time during either of the appeal periods, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations. As noted above, in a March 2015 rating decision, the RO granted service connection for right lower extremity radiculopathy and assigned a separate 20 percent rating. The RO did not grant service connection for radiculopathy of the left lower extremity. The Board will be addressing these matters below. Thus, those matters are not for consideration here. Additionally, there have not been any other neurological findings, to include bladder or bowel impairment, during the appeal period.
The Board has also considered the Veteran's statements that describe his pain and discomfort. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. In this case, however, the Board finds that the objective medical findings by skilled professionals are more persuasive, which, as indicated above, do not support an initial increased rating higher than 40 percent for the entire period on appeal, for the service-connected low back disability.
Accordingly, resolving all reasonable doubt in favor of the Veteran, for the entire period on appeal, an initial rating of 40 percent, but no higher, for the Veteran's service-connected low back disability is warranted. As the greater weight of evidence is against the claim for an initial rating in excess of 40 percent, there is no doubt on this matter that could be resolved in the Veteran's favor.
Radiculopathy of the Bilateral Lower Extremities
As discussed above, in a March 2015 rating decision, the RO granted a separate 20 percent rating for radiculopathy of the right lower extremity, effective October 22, 2014, the date of the VA examination showing radiculopathy of the right lower extremity, pursuant to Diagnostic Code 8520. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran disagreed with the initial rating assigned. The RO did not grant a separate compensable rating for radiculopathy of the left lower extremity, and the Veteran did not disagree with this finding. However, as lumbar radiculopathy is part and parcel of the increased rating claim for the Veteran's lumbar spine disability, the Board will consider the entire increased rating period to determine if entitlement to a compensable rating for the right lower extremity radiculopathy occurred at any time during the rating period prior to the October 22, 2014, effective date, and whether entitlement to a compensable rating for left lower extremity radiculopathy occurred at any time during the appeal period. 38 C.F.R. § 4.71, General Rating Formula, Note 1.
Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a.
The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).
Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2016). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id.
The words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.
For the period prior to October 22, 2014, the Board finds that a separate compensable evaluation for radiculopathy of the right lower extremity was not warranted. In this regard, the Board notes that the Veteran was first diagnosed with radiculopathy of the right lower extremity in his October 2014 VA examination. Prior to the October 2014 VA examination, the objective medical findings were essentially normal. The Veteran's muscle strength was 5/5, there was no atrophy, and deep tendon reflexes were 2+. The Board therefore finds that a compensable disability rating for the period prior to October 22, 2014, for the right lower extremity is not warranted.
For the period beginning October 22, 2014, the Board finds that the Veteran's symptoms do not rise to the level of moderately severe incomplete paralysis, as would be required for a higher rating under Diagnostic Code 8520. No clinician has ever characterized the radiculopathy of the Veteran's right lower extremity as "moderately severe" or worse. The Veteran's impairment has primarily involved moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness, without muscle atrophy or loss of the ability to ambulate. The Board finds that such impairment is not of a degree approximating moderately severe incomplete paralysis, and a disability rating in excess of 20 percent for radiculopathy of the right lower extremity is not warranted.
In this regard, in the October 2014 VA examination, the Veteran reported pain radiating down to his hip to his right leg to the foot. He reported physical therapy for home treatment. He reported moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity. Muscle strength was 5/5. There was no muscle atrophy. Deep tendon reflexes were 2+. Sensation was decreased in the thigh/knee, lower leg/ankle, and foot/toes. The Veteran did not have any trophic changes attributable to peripheral neuropathy. He had an antalgic gait. The examiner noted that the radicular pain involved the sciatic nerve. The examiner found that the severity of the Veteran's radiculopathy was moderate. The Veteran did not use any assistive devices for locomotion.
In an October 2014 VA treatment record, the Veteran reported increasing residual pain to the right hip, extending from the right hip to the toes. The Veteran reported tingling and numbness of the right leg. In December 2014, the Veteran complained of numbness of the right foot and right leg pain. On physical examination, the right lower extremity was limited to examination due to pain. Electromyography findings were normal.
Based on the foregoing, the Board finds that the evidence does not show that, for the period beginning October 22, 2014, the Veteran's lumbar radiculopathy of the right lower extremity is manifested by symptomatology that more nearly approximates the criteria for an evaluation of 40 percent under DC 8520, and that the preponderance of the evidence is against an initial increased rating.
With respect to the left lower extremity, the Board finds that a separate compensable evaluation is not warranted at any time during the appeal period. In this regard, the Board notes that the Veteran has never been diagnosed with radiculopathy of the left lower extremity. Specifically, in his VA examination dated in July 2009, the neurological examination of the lower extremities revealed motor and sensory function within normal limits. Deep tendon reflexes of the left lower extremity were 2+. The examiner indicated that peripheral nerve involvement was not evidenced during examination. There were no sensory deficits from L1-L5 or S1. There was no lumbosacral motor weakness. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement.
Additionally, in his VA examination dated in October 2014, although the Veteran reported sporadic radiation down the left leg with pins and needles to his toe, the October 2014 examiner did not find any evidence of radiculopathy of the left lower extremity. There were no findings of pain, paresthesias and/or dysesthesias, or numbness. Muscle strength was 5/5 and there was no atrophy. Deep tendon reflexes were 2+. Sensation testing for light touch was normal. The Veteran did not have any trophic changes attributable to peripheral neuropathy. The examiner indicated that the left sciatic nerve was normal.
The Board acknowledges that in a VA treatment record dated October 22, 2014, the Veteran complained of tingling and numbness of the left leg. In a December 2014 VA treatment record, the Veteran again complained of numbness in the bilateral feet. He noted that the numbness in the lateral aspect of the left foot began three weeks prior. On physical examination, the left lower extremity strength was 5/5. Deep tendon reflexes were 2+. Sensation to light touch and vibratory sensation were intact. The Veteran had positive paresthesia on the left lateral foot. However, an EMG study at that time showed normal nerve conduction velocity (NCV) of the bilateral peroneal, tibial, and sural sensory nerves. The study revealed no electrodiagnostic evidence of polyneuropathy, mononeuropathy, or radiculopathy affecting the bilateral lower extremities.
The Board acknowledges the Veteran's complaints of sporadic numbness and tingling of the left leg. However, the medical findings throughout the appeal period have essentially been normal. As the medical evidence of record does not demonstrate lumbar radiculopathy of the left lower extremity, the Board finds that a separate compensable disability rating for mild incomplete paralysis of the left lower extremity is not warranted.
Upon careful consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for lumbar radiculopathy of the right lower extremity for the period prior to October 22, 2014, and a rating greater than 20 percent thereafter. The Board also finds that the preponderance of the evidence is against the assignment of a compensable rating for radiculopathy of the left lower extremity at any time during the appeal period. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Initial Increased Rating - Cervical Spine Disability
By way of background, in a February 2010 rating decision, the RO granted entitlement to service connection for cervical spondylosis, and assigned a 10 percent evaluation effective October 1, 2009, pursuant to Diagnostic Code 5299-5239. See 38 C.F.R. § 4.71a, Diagnostic Code 5239. The Veteran disagreed with the initial rating assigned. In a March 2015 rating decision, the RO increased the evaluation for the Veteran's cervical spine disability (now intervertebral disc syndrome, with C5-C7 cervical degenerative disc disease and radiculopathy) to 30 percent effective October 22, 2014, the date of the VA examination showing worsening, pursuant to Diagnostic Codes 5242-5243. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. The Veteran primarily asserts that his 30 percent rating should be effective the date of his initial claim, October 1, 2009.
As noted above, disabilities of the spine should be evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243.
Under the General Rating Formula, a 10 percent rating is assignable for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees. A 20 percent rating is assignable for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assignable for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assignable for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine.
Also, any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1.
When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.
An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1).
The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2).
Reviewing the relevant evidence of record, on VA examination in July 2009,
the Veteran's posture was normal and he walked with a normal gait. His walking was steady. The Veteran did not require any assistive device for ambulation. There were no signs of lowered endurance or impaired coordination. Examination of the cervical spine did not reveal any evidence of radiating pain on movement, muscle spasm, weakness, loss of tone, or atrophy of the limbs. The examination revealed tenderness described as bilateral trapezius with bilateral positive Spurling's. The examination showed evidence of guarding described as deliberate movement. There was no ankylosis of the cervical spine. Range of motion of the cervical spine was as follows: forward flexion to 45 degrees; extension to 30 degrees with pain at 20 degrees; right lateral flexion to 45 degrees; left lateral flexion to 35 degrees with pain at 30 degrees; right rotation to 70 degrees; and left rotation to 60 degrees. Repetitive range of motion was possible, and there was no additional degree of limitation with repetitive range of motion. The examiner indicated that the joint function of the cervical spine was additionally limited by the following after repetitive use: pain. The examiner indicated that pain had the major functional impact. The examiner indicated that the joint function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine.
Neurological examination of the upper extremities revealed motor and sensory function within normal limits. The bilateral upper extremity deep tendon reflexes were 2+. Neurological examination of the cervical spine did not reveal any sensory deficits from C3-C8. There was no motor weakness. There were no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. X-ray imaging was within normal limits. The examiner found that the effect on the Veteran's usual occupation and daily activity was pain with all strenuous activity.
In August 2010, the Veteran applied for disabled parking. On the application, a physician indicated that he could not walk 200 feet without stopping to rest and that he was severely limited in his ability to walk due to an arthritic, neurological, or orthopedic condition.
In the Veteran's notice of disagreement dated in January 2011, the Veteran indicated that magnetic resonance imaging revealed degenerative disc disease of the cervical spine at C-6.
In September 2013 FMLA application, the Veteran described the need for pain management for chronic pain, use of TENs unit, and physical therapy for his chronic neck and back pain. The Veteran estimated the frequency of his flare-ups as seven times per week lasting two to six hours per day per episode. He indicated that he needed care during these flare-ups.
In an October 2013 statement in lieu of a VA Form 646, the Veteran's representative indicated that the Veteran's service-connected cervical spondylosis caused severe pain daily, where he was unable to perform his daily tasks. The representative indicated that the Veteran contended that the VA examining physician did not take his amount of pain into consideration. The representative indicated that the Veteran reported that his conditions caused him difficulties walking and standing for any great amount of time.
On VA examination in October 2014, the examiner diagnosed intervertebral disc syndrome, C5-7 cervical degenerative disc disease, and cervical radiculopathy. The Veteran reported that his hands were numb when he awoke at night. He reported pins and needles in his hands. He indicated that he had been given physical therapy for home treatment. The Veteran reported flare-ups of the cervical spine disability. Range of motion was as follows: forward flexion to 30 degrees with pain at 20 degrees; extension to 30 degrees with pain; right and left lateral flexion to 40 degrees with pain; right lateral rotation to 30 degrees with pain; and left lateral rotation to 20 degrees with pain. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test forward flexion was to 10 degrees; extension was to 30 degrees; right and left lateral flexion were to 40 degrees; right lateral rotation was to 20 degrees; and left lateral rotation was to 30 degrees. With respect to the Mitchell criteria, the examiner explained that an opinion regarding if, when, and to what extent, in degrees, further "repetitive use" or reported "flare ups" could significantly limit functional ability, is not one with literature support, but instead based on clinical information including history and physical findings. The examiner indicated that more definitive loss of function due to flare-ups could not be determined without resorting to mere speculation. The Veteran had the following functional loss: less movement than normal, pain on movement, and lack of endurance. The Veteran had localized tenderness or pain to palpation. The Veteran had muscle spasm and guarding of the cervical spine not resulting in abnormal gait or spinal contour.
Muscle strength was 5/5 and there was no muscle atrophy. Deep tendon reflexes were 2+. Sensation to light touch was normal. The Veteran had radiculopathy. He had mild intermittent pain of the bilateral upper extremities; moderate paresthesias and/or dysesthesias of the bilateral upper extremities; and mild numbness of the bilateral upper extremities. His radiculopathy involved the C7 nerve roots (middle radicular group). The examiner indicated that the Veteran's bilateral upper extremity radiculopathy was mild. The Veteran did not have any other neurologic abnormalities related to his cervical spine disability. The examiner found intervertebral disc syndrome of the cervical spine. The examiner indicated that the Veteran had not had any incapacitating episodes in the past 12 months. The Veteran did not use any assistive devices for ambulation. The examiner noted that a 2011 EMG showed C7 radiculopathy. The examiner indicated that the Veteran's cervical spine condition impacted his ability to work, as he was unable to lift more than ten pounds and had FMLA paperwork for release from work with pain management.
Various VA treatment records showed complaints of cervical spine pain. X-ray imaging in December 2012 revealed stable lower cervical spine degenerative disease. In December 2012, the Veteran complained of more pain in his neck with numbness down the right arm. In January 2013, the Veteran reported that the pain in his neck was becoming worse. He requested to have his medications increased. Magnetic resonance imaging of the cervical spine dated in March 2013 was negative for disc herniation or spinal narrowing. There were moderate degenerative changes where the nerves exited.
Considering the pertinent facts in light of applicable rating criteria, the Board finds that for the period prior to October 22, 2014, a rating in excess of 10 percent is not warranted for the Veteran's cervical spine disability. The record does not contain evidence of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. Notably, on VA examination in July 2009, the Veteran had full forward flexion (45 degrees) and strength. There were no additional degrees of limitation following repetitive motion. While the Veteran's treatment records showed that he experienced occasional flare-ups of neck pain, to the extent that such pain caused any limitation of motion, the evidence of record, to include the Veteran's lay statements, do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing.
Furthermore, as the Veteran is currently in receipt of a 10 percent rating for his cervical spine, this contemplates painful motion of the neck, which he has reported in his lay statements.
The Board finds that the weight of the lay and medical evidence of record demonstrates that during this period, the Veteran did not have forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 degrees, or any further limitation. Therefore, the Board concludes that a higher initial rating for the cervical spine disability is not warranted.
The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 10 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. Notably, the July 2009 VA examiner noted that the Veteran was not additionally limited by fatigue, weakness, lack of endurance or incoordination and there was no additional limitation in degree. Although the record shows decreased range of motion and pain on motion, none of the functional loss recorded is equivalent to forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran did not have any muscle spasms present. Although the July 2009 examination showed evidence of guarding described as deliberate movement, there was no indication this resulted in abnormal gait or spinal contour. In fact, at the July 2009 examination, the Veteran's posture was normal and he walked with a normal gait. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine.
Finally, the Board notes that the July 2009 VA examiner determined that the Veteran did not have intervertebral disc syndrome. Moreover, the Veteran did not report, and the evidence does not show, any incapacitating episodes during this timeframe. Accordingly, there is no evidence of incapacitating episodes having a total duration of least 2 weeks but less than 4 weeks which would result in an evaluation in excess of 10 percent for the period prior to October 22, 2014.
For the period beginning October 22, 2014, there is no evidence to support a higher rating. In this regard, there is simply no indication that the Veteran's cervical spine disability results in unfavorable ankylosis of the spine. The medical records clearly demonstrate that while the motion of the Veteran's cervical spine has been limited, some range of motion has been present throughout the applicable period under appeal. As shown above, none of the examiners have found any spinal ankylosis. Thus, it cannot be concluded that the Veteran has unfavorable ankylosis of the cervical spine.
As for a higher rating under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that although the most recent examiner in October 2014 found intervertebral disc syndrome of the cervical spine, the examiner indicated that the Veteran had not had any incapacitating episodes in the past 12 months. As such, a disability rating higher than the currently assigned 30 percent for the service-connected cervical spine under the rating criteria for intervertebral disc syndrome is not warranted.
As to whether additional compensation for neurological impairment is warranted at any time during the appeal period, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations. The Board observes that in a March 2015 rating decision, the RO granted separate 20 percent ratings for radiculopathy of the bilateral upper extremities, effective October 22, 2014. These issues are on appeal and will be addressed below. Additionally, there have not been any other neurological findings during the appeal period.
Accordingly, as the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for the service-connected cervical spine disability prior to October 22, 2014, and in excess of 30 percent thereafter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Initial Increased Rating - Radiculopathy of the Right and Left Upper Extremities
As discussed above, in a March 2015 rating decision, the RO granted separate 20 percent ratings for radiculopathy of the bilateral upper extremities, effective October 22, 2014, the date of the VA examination diagnosing radiculopathy of the bilateral upper extremities, pursuant to Diagnostic Code 8511. See 38 C.F.R. § 4.124a, Diagnostic Code 8511. The Veteran disagreed with the initial ratings assigned. As radiculopathy is part and parcel of the increased rating claim for the Veteran's cervical spine disability, the Board will consider the entire increased rating period to determine if entitlement to a compensable rating for radiculopathy of the bilateral upper extremities occurred at any time during the rating period prior to the October 22, 2014, effective date. 38 C.F.R. § 4.71, General Rating Formula, Note 1. The Veteran primarily asserts that the 20 percent ratings should be effective this date of his claim, October 1, 2009.
Diagnostic Code 8511 provides ratings for paralysis of the middle radicular group of nerves. Under Diagnostic Code 8511, for both the major and minor arms, mild incomplete paralysis warrants a 20 percent evaluation. Moderate incomplete paralysis warrants a 30 percent rating for the minor arm and a 40 percent rating for the major arm. Severe incomplete paralysis warrants a 40 percent rating for the minor arm and a 50 percent rating for the major arm. Complete paralysis, adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected warrants a 60 percent rating for the minor arm and 70 percent rating for the major arm. 38 C.F.R. § 4.124a, Code 8511 (2016).
With respect to the right upper extremity, the Board finds that an initial rating of 20 percent, but not higher, beginning March 24, 2011, is warranted. The first evidence of at least mild radiculopathy of the right upper extremity is shown in March 2011. In this regard, a private EMG performed on March 24, 2011, was abnormal and revealed acute right C-7 cervical radiculopathy. The examiner's impression was very mild right median neuropathy at the wrist. Moreover, in a VA treatment record dated in November 2011, the Veteran reported that he had recently been getting some right hand numbness. However, the radiculopathy of the right upper extremity has been shown to be manifested by no more than mild, incomplete paralysis during this timeframe. In this regard, in the October 2014 VA examination, the Veteran reported that his hands were numb when he awoke at night. He described pins and needles in his hands. The examiner found mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the bilateral upper extremities. Muscle strength was 5/5 and there was no muscle atrophy. Deep tendon reflexes were 2+. Sensation to light touch was normal. There were no trophic changes attributable to peripheral neuropathy. The examiner found mild incomplete paralysis of the long thoracic nerve, upper radicular group, and middle radicular group of the bilateral upper extremities.
Prior to March 24, 2011, there was no finding of radiculopathy of the right upper extremity which was at least mild in nature. In this regard, the Board acknowledges that in a VA treatment record dated in February 2011, the Veteran complained of pain in the right upper extremity, which started around June or July 2009 and slowly increased in intensity. However, there was no finding of radiculopathy at the time of the July 2009 VA examination. At that time, neurological examination of the upper extremities revealed motor and sensory function within normal limits. The bilateral upper extremity deep tendon reflexes were 2+. There were no sensory deficits from C3-C8 or motor weakness. There were also no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. As such, the medical evidence prior to March 24, 2011 does not demonstrate lumbar radiculopathy of the right upper extremity. As such, there is no probative evidence that the condition was at least mild in nature during this timeframe.
With respect to the left upper extremity, based on the record, the Board finds that the preponderance of the evidence is against the assignment of a separate compensable rating prior to October 22, 2014, and in excess of 20 percent thereafter.
Prior to October 22, 2014, the evidence is negative for complaints of radicular symptoms of the left upper extremity or clinical findings of left upper extremity radiculopathy. Notably, there was no finding of radiculopathy of the left upper extremity at the time of the July 2009 VA examination. The March 2011 EMG results only mentioned radiculopathy in the right upper extremity. There was no diagnosis of a neurological disability of the left upper extremity at that time. As such, a separate compensable rating for radiculopathy of the left upper extremity prior to October 22, 2014, is not warranted.
Beginning October 22, 2014, the Veteran's radiculopathy of the left upper extremity has been manifested by symptoms that have been no more than mild in nature. As noted above, in the October 2014 VA examination, the Veteran reported that his hands were numb when he awoke at night. He described pins and needles in his hands. The examiner found mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the bilateral upper extremities. Muscle strength was 5/5 and there was no muscle atrophy. Deep tendon reflexes were 2+. Sensation to light touch was normal. There were no trophic changes attributable to peripheral neuropathy. The examiner found mild incomplete paralysis of the long thoracic nerve, upper radicular group, and middle radicular group of the bilateral upper extremities. Thus, the evidence does not suggest that the radiculopathy of the left upper extremity has been moderate in nature at any time during the appeal period. As such, the next-higher rating is not warranted.
The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms. In this case, the Board finds no other provision upon which a higher rating could be assigned for the Veteran's radiculopathy of the bilateral upper extremities. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In sum, a separate compensable rating is not warranted for the Veteran's radiculopathy of the right upper extremity prior to March 24, 2011. Beginning March 24, 2011, an initial rating of 20 percent, but no higher, is warranted for the Veteran's radiculopathy of the right upper extremity. With respect to the radiculopathy of the left upper extremity, a separate compensable rating is not warranted for the period prior to October 22, 2014, and a rating in excess of 20 percent is not warranted thereafter. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
Initial Increased Rating - Bilateral Foot Disability
The Veteran primarily contends that he is entitled to a 50 percent rating for his bilateral foot disability effective the date of his claim, October 1, 2009. By way of background, in a February 2010 rating decision, the RO granted entitlement to service connection for left and right foot plantar fasciitis, and assigned noncompensable ratings effective October 1, 2009, pursuant to Diagnostic Code 5099-5020. See 38 C.F.R. § 4.71a, Diagnostic Code 5020. The Veteran disagreed with the initial ratings assigned. In a March 2015 rating decision, the RO rated the Veteran's bilateral foot condition (initially rated separately) as a single disability (bilateral plantar fasciitis with left foot pes planus and right foot acquired pes cavus) and increased the rating to 50 percent disabling, effective October 22, 2014, the date of the VA examination showing worsening, pursuant to Diagnostic Code 5276. See 38 C.F.R. § 4.71a, Diagnostic Code 5276.
Prior to October 22, 2014, the RO rated the Veteran's plantar fasciitis as synovitis under 38 C.F.R. § 4.71a, Diagnostic Code 5020. This code directs that synovitis be rated on the basis of limitation of motion of the effective joint as arthritis is.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes.
Beginning October 2014, the Veteran's bilateral foot condition has been rated as a single disability as pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276.
Under Diagnostic Code 5276, a 0 percent rating is warranted for mild flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for bilateral or unilateral moderate flatfoot, with a weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A 20 percent rating is warranted for unilateral severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities. A 30 percent rating is warranted for bilateral severe flatfoot as described above or for unilateral pronounced flatfoot with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasms of the tendo Achillis on manipulation, and no improvement by orthopedic shoes or appliances. A 50 percent rating is warranted for bilateral pronounced flatfoot as described above.
Alternative and additional diagnostic codes for the feet are available under 38 C.F.R. § 4.71a, as follows:
Bilateral weak foot is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5277. The disability is defined as a symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. It is to be rated based on the underlying condition but with a minimum rating of 10 percent.
Acquired pes cavus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5278. A 0 percent rating is warranted for slight pes cavus. A 10 percent rating is warranted for unilateral or bilateral pes cavus with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads. A 20 percent rating is warranted for unilateral pes cavus and a 30 percent rating is warranted for bilateral pes cavus when all toes tend to dorsiflexion, there is limitation of dorsiflexion at the ankle to a right angle, plantar fascia are shortened, and there is marked tenderness under the metatarsal heads. A 30 percent rating is warranted for unilateral pes cavus and a 50 percent rating is warranted for bilateral pes cavus when there is marked contraction of the plantar fascia with dropped forefoot, all toes are hammer toes, there are very painful callosities, and there is marked varus deformity.
Unilateral or bilateral metatarsalgia (Morton's disease) is rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5279.
Unilateral hallux valgus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280. A 10 percent rating is warranted for operated hallux valgus with resection of the metatarsal head, or for severe hallux valgus if equivalent to amputation of the great toe.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5281, unilateral severe hallux rigidus is to be rated as severe hallux valgus. Ratings for hallux rigidus are not to be combined with ratings for pes cavus.
Hammer toes are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282. Single hammer toes are rated at 0 percent. All toes, unilateral, without claw foot, are rated at 10 percent.
Nonunion or malunion of the tarsal or metatarsal bones are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5283. A moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent.
Other foot injuries are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284. A moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent.
The words "moderate" "moderately severe," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.
Great care is to be exercised in the selection of the diagnostic code number. 38 C.F.R. § 4.27 (2016). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. See 38 C.F.R. § 4.20 (2016) (providing for consideration of functions affected, anatomical localization, and symptomatology in assigning a diagnostic code). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993).
It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).
Although the RO initially rated the Veteran's disability under Diagnostic Code 5003 via Diagnostic Code 5020, the Board finds that the rating criteria under Diagnostic Code 5284 are more appropriate given the Veteran's complaints of pain and functional limitation. Additionally, there have been no findings of synovitis or arthritis during the appeal period. Because the severity of a foot condition is considered under Diagnostic Code 5284, the Board will also consider whether a higher rating is warranted under this diagnostic code.
Reviewing the relevant evidence of record, on VA examination in July 2009, the Veteran reported that he was diagnosed with bilateral plantar fasciitis in May 2008. He reported pain in both feet which occurred twice a day and lasted an hour each time. He described the pain as localized, burning, aching, sticking, and cramping. He noted the pain level was 7/10. He indicated the pain could be exacerbated by physical activity and relieved by rest and inserts. The Veteran indicated that at the time of pain, he could function with medication. He described pain and stiffness at rest. He denied weakness, swelling, or fatigue at rest. He reported weakness and stiffness while standing or walking. He denied swelling or fatigue while standing or walking. He denied any hospitalizations or surgeries for this condition. He noted treatment with orthotics. He reported the overall functional impairment from this condition as pain after prolonged walking and running.
The Veteran walked with a normal gait. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. Examination of the feet also did not reveal any edema, disturbed circulation, weakness, atrophy of the musculature, tenderness, heat, redness or signs of deformity. The Veteran did not require an assistive device for ambulation. There were no functional limitations of standing and walking. The examiner indicated that the Veteran did not require the use of corrective shoe wear. The plantar surfaces of both feet were tender over the mid-substance of the plantar fascia. X-ray findings were within normal limits. The examiner diagnosed bilateral plantar fasciitis with subjective factors of intermittent foot pain and objective factors of tenderness over both plantar fascia.
In his notice of disagreement dated in January 2011, the Veteran indicated that his gait was "not right." He also reported ongoing constant extreme foot arch pain and cramps.
In an October 2013 statement in lieu of a VA Form 646, the Veteran's representative indicated that the Veteran's service-connected bilateral foot condition caused severe pain daily, where he was unable to perform his daily tasks. The representative indicated that the Veteran contended that the VA examining physician did not take his amount of pain into consideration. The representative indicated that the Veteran reported that his conditions caused him difficulties walking and standing for any great amount of time.
On VA examination in October 2014, the examiner diagnosed flat foot (pes planus), acquired pes cavus (claw foot), and plantar fasciitis. The Veteran reported that he buys inserts for his feet every six months and wears support socks at night. He noted that he had been to physical therapy, and performed physical therapy at home. He reported moderately severe flare-ups three to four times a week lasting 30 to 45 minutes. He noted treatment with stretching/rolling pin stretches and medications. He indicated that he could walk 1/4 mile and stand for 45 minutes. The Veteran reported burning, aching pain and cramps at night. Pain on examination was 4/10 on the right and 2/10 on the left. At its worst, the Veteran described the pain as 8-9/10 on the right and 7-8/10 on the left. The Veteran reported functional impairment. He indicated that he wore night splints to assist with morning pain.
On examination, the Veteran had pain on use of the bilateral feet. He did not have pain on manipulation of the feet or swelling on use. He did have characteristic callouses of the bilateral feet. The Veteran reported use of bilateral arch supports and orthotics without relief. He had extreme tenderness of the plantar surfaces of both feet, which was not improved by orthotic shoes or appliances. He had decreased longitudinal arch height of the left foot on weight bearing. There was no objective evidence of marked deformity of the feet. There was no marked pronation. The weight-bearing line did not fall over or medial to the great toe. There was no lower extremity deformity other than pes planus causing alteration to the weight-bearing line. The Veteran did not have "inward" bowing of the Achilles tendon. The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of the feet. The acquired pes cavus resulted in the right great toe being dorsiflexed; definite tenderness under the right metatarsal heads; and marked contraction of right plantar fascia with dropped forefoot. There was pain on physical examination which contributed to functional loss of excess fatigability, pain on weight-bearing, interference with standing, and lack of endurance. There was pain, weakness, fatigability, and incoordination that significantly limited functional ability during flare-ups or when the foot was used repeatedly over a period of time. There was no x-ray evidence of arthritis. The examiner indicated that the Veteran's foot condition impacted his ability to work. The examiner noted that the Veteran was the supervisor of Home Depot and was able to work 24 hours per week with FMLA paperwork allowing him to leave when in pain or for doctor's appointments.
VA treatment records showed continued treatment for foot pain with use of orthotics.
Upon careful review of the evidence of record, for the period prior to October 22, 2014, the Board finds the Veteran is entitled to initial 10 percent ratings, but no more, under DC 5284 (foot injuries) for his service-connected left and right foot plantar fasciitis. Neither the lay nor medical evidence of record more nearly reflects that the criteria for ratings in excess of 10 percent have been met at any time during this timeframe. 38 C.F.R. § 4.71(a), DC 5284.
The Board finds the Veteran's left and right foot plantar fasciitis more nearly approximated ratings of 10 percent for "moderate" symptoms during this timeframe. The Veteran predominately complained of bilateral foot pain resulting in decreased mobility. In particular, in his July 2009 VA examination, he reported the overall functional impairment from this condition as pain after prolonged walking and running. However, examination of the feet did not reveal any signs of abnormal weight-bearing or breakdown, callosities or any unusual shoe wear pattern. Examination of the feet also did not reveal any edema, disturbed circulation, weakness, atrophy of the musculature, tenderness, heat, redness or signs of deformity. The Board finds that the Veteran's symptoms during this timeframe were consistent with no more than moderate disability. The record does not reflect that his left and right foot disabilities were manifested with moderately severe or severe symptoms. Accordingly, ratings in excess of 10 percent are not therefore warranted. 38 C.F.R. § 4.71a, DC 5284.
The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board acknowledges the Veteran's lay reports of symptomatology such as decreased mobility, some trouble with activities of daily living, and difficulty with pain and cramps following prolonged walking and running. However, neither the lay nor medical evidence reflects symptoms required to warrant the next higher ratings for the period considered.
The Board has reviewed other sections of the Rating Schedule to determine whether a higher rating could be assigned under another diagnostic code. There is no evidence that the Veteran has degenerative arthritis in his feet. As such, a rating based upon arthritis is not warranted. The Board notes that a separate rating under Diagnostic Code 5003 (via Diagnostic Code 5020) is also not warranted, because the Board has fully considered the symptoms and associated functional limitations of the Veteran's bilateral foot disability in assigning 10 percent ratings under Diagnostic Code 5284. 38 C.F.R. § 4.14.
The Board has also considered whether the Veteran would be entitled to a higher rating under other diagnostic criteria related to the feet. In this regard, the Board notes that Diagnostic Codes 5276 (pes planus), 5277 (weak foot), 5278 (claw foot), 5279 (interior metatarsalgia), 5280 (hallux valgus), 5281 (hallux rigidus), 5282 (hammer toe), and 5283 (malunion or nonunion of tarsal or metatarsal bones) are not for application because none of these conditions were present during this timeframe. The Board acknowledges that the October 2014 examiner noted diagnoses of pes planus and pes cavus going back to 2008. However, the July 2009 VA examiner specifically indicated that there were no findings of pes planus or pes cavus. Furthermore, even if the Veteran had diagnoses of pes planus and pes cavus throughout the entire period on appeal, his symptomatology during this timeframe would not rise to the level required for a rating higher than the currently assigned 10 percent evaluations under the applicable diagnostic codes.
As such, for the period prior to October 22, 2014, separate initial 10 percent ratings, but no higher, are warranted for the left and right plantar fasciitis.
For the period beginning October 22, 2014, according to VA regulations, a 50 percent evaluation is the maximum schedular rating allowed for bilateral pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276. As such, the assignment of a rating in excess of 50 percent for bilateral pes planus is not possible under this diagnostic code. In any event, the Board concludes that the 50 percent rating fully contemplates the Veteran for his bilateral foot disability symptomatology.
The Board has considered the application of other diagnostic codes. None of the remaining diagnostic codes pertaining to the foot, however, provide for a rating in excess of 50 percent. In this regard, the Board notes that the Veteran has also been diagnosed with pes cavus (claw foot) of the right foot. However, a 50 percent evaluation is the maximum schedular rating allowed under this diagnostic code. As such, the assignment of a rating in excess of 50 percent for pes cavus is not possible.
In sum, for the period prior to October 22, 2014, initial ratings of 10 percent, but no higher, are warranted for the left and right foot plantar fasciitis. For the period beginning October 22, 2014, an initial rating in excess of 50 percent for bilateral plantar fasciitis with left foot pes planus and right foot pes cavus is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
Initial Increased Rating - Hypertension
The Veteran is seeking an initial compensable rating for hypertension. Service connection was established for hypertension in a February 2010 rating decision. An initial noncompensable rating was assigned under Diagnostic Code 7101.
Under Diagnostic Code 7101, hypertension warrants a 10 percent rating where diastolic pressure is predominately 100 or more; systolic pressure predominately 160 or more, or if there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control. A 20 percent disability evaluation for hypertension requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.
The Board notes that the rating criteria for Diagnostic Codes 7101 are successive. In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating. Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive "and" and "with" in a statutory provision means that all of the listed conditions must be met).
Reviewing the relevant evidence of record, on VA examination in July 2009, the Veteran reported being diagnosed with hypertension in March 2007. He denied any symptoms. He indicated treatment with Lisinopril for two years with a good response and no side effects. He denied any overall functional impairment from this condition. The Veteran's three blood pressure readings were 124/90, 124/90, and 126/90. The examiner diagnosed hypertension with treatment with medication. The examiner indicated that there were no findings of hypertensive heart disease.
In his notice of disagreement dated in January 2011, the Veteran indicated that he had to have his medications increased. He noted that his blood pressure was not controlled.
In a brief in lieu of a VA Form 646 dated in October 2013, the Veteran's representative noted that the Veteran continued to have increased blood pressure, despite his medication.
On VA examination in October 2014, the examiner noted a diagnosis of hypertension from March 2007. The Veteran denied taking blood pressure medications. He noted that when he was not in pain, his blood pressure was normal. He noted that he had a trial of Lisinopril for two years and self-discontinued the medication. He reported self-monitoring of his blood pressure at home (140/97). The examiner indicated that the Veteran's treatment plan included taking continuous medication for his hypertension. The examiner noted that the Veteran was non-compliant with his Lisinopril prescription. The examiner found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. The Veteran's blood pressure readings were 130/80 (6/2014), 140/98 (10/2014), and 146/98 (10/2014). The Veteran's average blood pressure reading was 138/92. The examiner indicated that the Veteran's hypertension did not impact his ability to work.
On VA examination in March 2016, the examiner noted a diagnosis of hypertension in 2007. The Veteran reported that he was taking medications for his hypertension but stopped due to the medication not making him feel well. The Veteran indicated that his blood pressure was only elevated when he is having moderate to severe pain in his back. The Veteran indicated he was not currently taking any medication for his hypertension. The Veteran denied target organ damage or any symptoms such as headaches, nosebleeds, or dizziness.
The examiner indicated that the Veteran's systolic pressure appeared to have peaked at 162, which occurred one time only in 2002. The examiner also noted a one-time reading of 157 in 2008. However, the examiner explained that the Veteran's blood pressure had consistently trended down since that date and was normal in January 2016. The examiner explained that only the one reading of 162 met the criteria for systolic measurements. The examiner noted further that the diastolic measurements of 102 and 103 occurred only one time each, once in 2004 and once in 2011. The examiner noted that these readings have also trended downward. Based on the history given, the examiner could not say with certainty if the Veteran actually had essential hypertension or if the readings were a response to the catecholamines released during painful periods in combination with his sleep apnea and cannabis use.
The examiner indicated that the Veteran's treatment plan did not include taking continuous medication for hypertension. The examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The Veteran's current blood pressure readings were 138/93, 160/101, and 147/94. His average blood pressure reading was 148/96. The examiner indicated that the Veteran's hypertension did not impact his ability to work. The examiner commented that the Veteran's drug screens were persistently positive for cannabis and PCP, which had influenced his blood pressure readings. The examiner noted further that the Veteran's lack of compliance with his sleep apnea treatment could also be an influence on his increased blood pressure readings, as there is a "wealth of knowledge" concerning the pathophysiologic link between hypertension and sleep apnea to the point that treating the sleep apnea was known to lower the blood pressure readings.
Having carefully considered all the evidence of record, the Board finds that the preponderance of the evidence is against an initial compensable rating for hypertension.
A review of the medical evidence reflects that the Veteran has not been continuously treated with antihypertensive medication during this appeal. Instead, the evidence shows that although he completed a trial of Lisinopril for two years in or around 2009, he discontinued this medication on his own. Nonetheless, even if the Veteran was still taking his prescribed hypertension medication, the evidence does not show that he has predominantly had systolic readings of 160 or more or diastolic readings of 100 or more. See March 2016 VA examination (noting only one instance during the appeal period of a diastolic reading of 100 or more). As such, the criteria for a compensable (10 percent) evaluation are not met.
For the foregoing reasons, the Board finds that, throughout the rating period, the preponderance of the evidence is against an initial compensable rating for hypertension.
ORDER
For the entire period on appeal, entitlement to an initial rating of 40 percent, but no higher, for the low back disability is granted, subject to the regulations governing the award of monetary benefits.
For the period prior to October 22, 2014, entitlement to a compensable (separate) rating for the lumbar radiculopathy of the right lower extremity is denied.
For the period beginning October 22, 2014, entitlement to a rating in excess of 20 percent for the lumbar radiculopathy of the right lower extremity is denied.
The criteria for a separate compensable rating for radiculopathy of the left lower extremity have not been met.
For the period prior to October 22, 2014, entitlement to an initial rating in excess of 10 percent for the cervical spine disability is denied.
For the period beginning October 22, 2014, entitlement to an initial rating in excess of 30 percent for the cervical spine disability is denied.
For the period prior to March 24, 2011, entitlement to a separate compensable rating for radiculopathy of the right upper extremity is denied.
For the period beginning March 24, 2011, entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the right upper extremity is granted, subject to the regulations governing the award of monetary benefits.
For the period prior to October 22, 2014, entitlement to a separate compensable rating for radiculopathy of the left upper extremity is denied.
For the period beginning October 22, 2014, entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity is denied.
For the period prior to October 22, 2014, entitlement to a 10 percent rating for left foot plantar fasciitis, but no higher, is granted, subject to the regulations governing the award of monetary benefits.
For the period prior to October 22, 2014, entitlement to a 10 percent rating for right foot plantar fasciitis, but no higher, is granted, subject to the regulations governing the award of monetary benefits.
For the period beginning October 22, 2014, entitlement to an initial rating in excess of 50 percent for bilateral plantar fasciitis with left foot pes planus and right foot acquired pes cavus is denied.
Entitlement to an initial compensable evaluation for hypertension is denied.
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S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs